“Mere Error in Judgment” Instruction

Disturbingly, the Pennsylvania Supreme Court will consider approving a “a mere error in judgment” does not constitute negligence jury instruction. In other words, doctors can make mistakes as long as the jury wants to understand why the doctor made the mistake and can tolerate it.

The case on appeal involves an infant who underwent multiple treatments for what was thought to be gastroesophageal reflux after the child was fussy, wheezy, vomiting, not sleeping, and exhibiting pain while feeding. . After several visits with the defendant doctor, the boy’s parents took him to the ER where doctors found him in severe respiratory distress with a low heart rate. Tragically, the boy died. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The case went to trial and the court gave an “error in judgment” jury instruction which the defense lawyer ran with in closing argument. Plaintiffs, the parents of the lost child, are appealing the verdict because of the instruction. The Plaintiff’s are urging that the court affirm Pringle v. Rappaport, a shoulder dystocia case where the doctor was accused of excessive force when performing the corkscrew procedure in delivering the child, which abrogated the former “error in judgment rule” as a defense in medical malpractice cases.

I certainly hope the Pennsylvania Supreme Court makes the right call on this one.